Fourth Circuit Applies Rapanos, Remands Corps Decision

The Fourth Circuit Court of Appeals released a decision on January 25, 2011 in which it applied the US Supreme Court's decision in Rapanos v. US, 547 US 715 (2006), the  Supreme Court's most recent guidance on the jurisdictional extent of the Clean Water Act.  The case, Precon Development v. US Army Corps of Engineers, No. 09-2239,  involved a determination by the Corps of Engineers that a wetlands area  had a "significant nexus" to the nearest traditionally navigable water, the Northwest River. Precon had appealed the determination, because it did not want to get a CWA 404  permit for construction in part of the wetlands.  The Fourth Circuit affirmed the Corps' determination that the wetlands on which Precon wanted to construct, and neighboring wetlands, should be  aggregated for purposes of considering the effect of the wetlands on the navigable water 7 miles downstream. However, the Court concluded that the Corps had not adequately established that the wetlands had a significant effect on the downstream river, by preventing floods through water retention, or pollutant absorption. As the Court pointed out, the Corps' own Rapanos Guidance cautions that "[a]s the distance from the tributary to the navigable water increases, it will become increasingly important to document whether the tributary and its adjacent wetlands have a significant nexus rather than a speculative or insubstantial nexus with a traditional navigable water."

The case is a good primer on the state of the law regarding the jurisdictional extent of the Clean Water Act.
It discusses the two test, both Justice Kennedy's "significant nexus" test and the plurality opinion that jurisdiction extends to water bodies  with a continuous surface connection to a traditional navigable water. The parties here agreed that the significant nexus test applied, and the Court noted that using the plurality approach, a "continuous connection" test,  would have made jurisdiction even less likely.

The Corps has lost a battle but not necessarily the war. The Corps can still explain the significant nexus between the wetlands and the Northwest River. With regard to the remand, the Court said:

We ask only that in cases like this one, involving wetlands running alongside a ditch miles from any navigable water, the Corps pay particular attention to documenting why such wetlands significantly, rather than insubstantially, affect the integrity of navigable waters. Such documentation need not take the form of any particular measurements, but should include some comparative information that allows us to meaningfully review the significance of the wetlands’ impacts on downstream water  quality.

Thanks to John Palmer for forwarding this case to my attention.